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Koh, No!

In a forthcoming article for America's 1st Freedom, I detail Harold Koh's expressions of strong support for severe anti-gun laws, his stated intention to use his government position to promote such laws, and various techniques of transnationalism by which he could, as Legal Adviser to the U.S. Department of State, advance his agenda.

levisbaby:

Among his examples was that of "claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons."

I trust that you would agree with Mr. Koh that the Second Amendement does not permit "illicit" transfer of small arms and light weapons?

May I sell or give my AR-15 to a retarded 11 year old pyromaniac? That would be an "illicit" transfer, right? Do you contend that the Second Amendment (and Heller) permits that?
6.4.2009 12:52pm
steve (www):
Is it my understanding that out of the full article, you pick out one word, illicit, that - in your mind - makes what Koh is doing defensible?

2nd Amendment advocates are completely fine with regulations on illegal transfers to criminals, kids, and other countries. I do not accept Koh's premise that he only wants to target "illicit" transfers, that again, are ALREADY AGAINST THE LAW IN THE UNITED STATES.

He clearly wants to go beyond that and maybe you want that too?
6.4.2009 1:05pm
levisbaby:
Steve - Mr. Kopel offered that up as one of his first, and presumably most damning, quotes from Mr. Koh.

Seemed like pretty weak sauce to me.
6.4.2009 1:27pm
Lucas:

So Koh recommended that crafty ICC advocates find ways to "provoke interactions between the United States government and the ICC"—such as convincing the U.S. to supply evidence in an ICC case. Then, in Koh's words, the U.S. cooperation with the ICC "could be used to undermine" the president's withdrawal from the treaty. The ICC could claim that the U.S. cooperation has served to "constitute a de facto repudiation" of the "act of unsignature." Then, the ICC could assert that it has jurisdiction to prosecute American citizens.


Regardless of your position on the substance of the question you could at least try to be fair about the substance of Koh's arguments and to develop a fairly competent legal argument.

First, Koh's argument is not that through interaction with the ICC, the United States will somehow end up being bound by the Rome Statute but rather than by doing so the ICC will perhaps develop a relationship with the US that could ease an eventual process of ratification.

Second, even if such relationship were to be construed by the ICC as a "de facto repudiation" of the "act of unsignature" - which is extremely unlikely - still the ICC could not assert that it has jurisdiction to prosecute Americans on the basis of US consent. As you must have probably learned in Law School, signature of a treaty does not constitute expression of consent to be bound if the treaty foresees ratification as the means to do so.

Finally, you should note if you want to make a better argument that the ICC already has jurisdiction over American citizens, at least if they allegedly commit any crime within the jurisdiction of the Court in the territory of a State that has ratified the Rome Statute.

Again, never mind disagreement on the substance of your claims, you could at least try not to be misleading.
6.4.2009 1:29pm
MRSquared (mail):
I wonder how Koh feels, seeing history leaving him behind.
6.4.2009 1:31pm
Sebastian (mail) (www):
The various proposed treaties on "illicit" small arms and light weapons do things like require implementing states to license gun owners and register all firearms. Whether such things are allowed by the Second Amendment, I think one would agree is not as cut and dried as selling guns to "retarded 11 year old pyromaniacs"

Basically, if states did not implement this, other signing states would treat transfers to the non-implementing state as "illicit" So presumably that would make it rather difficult to get the Austrian made, and popular, Glock handgun in the United States.
6.4.2009 1:51pm
mcbain (mail):
Giving the 11 year-old disabled child and AR is cruel. give the kid an AK, at least he will have the chance to figure out how to use it.
6.4.2009 1:56pm
http://volokh.com/?exclude=davidb :
The argument that our RKBA is under any real threat from the UN, international treaties, a "transnationalist" agenda, etc., is pretty unconvincing.

When you ask proponents to identify, exactly, the sequence of events through which the RKBA in the U.S. would or could be constrained in this fashion, the whole thing starts looking wildly implausible.
6.4.2009 2:06pm
http://volokh.com/?exclude=davidb :
For example:

Now the final step: Koh contends that American courts must apply customary international law as part of federal common law. As a federal law, it would trump any arms rights protections in state constitutions and statutes.
6.4.2009 2:09pm
rosetta's stones:
Implausible or not, the 2A types appear poised to take down this pencilneck. I love the smell of burning NWOphile in the morning, and the gun issue is a useful tool for that.
6.4.2009 2:13pm
Sebastian (mail) (www):
When you ask proponents to identify, exactly, the sequence of events through which the RKBA in the U.S. would or could be constrained in this fashion, the whole thing starts looking wildly implausible.

Let's just look for a moment at the CIFTA treaty that Obama proposes the United States enter into. It requires signatory nations to require licensing for the manufacturing of any ammunition.

Current federal law only requires licenses for manufacturers who are engaged in the business of manufacturing ammunition for sale. Ordinary competitive shooters, such as myself, are still free to manufacture ammunition at home for their own use without having to pay 1000 dollars for privilege of being licensed by the feds.

The treaty also requires people who transport firearms to be licensed. Now, if creating a complex regulatory regime that gun owners must comply with or face prison isn't a limit on an enumerated constitutional right, I don't know what is. Such a scheme exists to some degree in states like New Jersey, which have very low rates of legal gun ownership as a result, and which I won't go compete in, despite it being right next door. The real risks are just too great. You're talking about a treaty that would make that the rule for the whole country, and guys like Koh who argue that American law needs to take a back seat to this international consensus.

How is this not a threat?
6.4.2009 2:16pm
levisbaby:

Giving the 11 year-old disabled child and AR is cruel. give the kid an AK, at least he will have the chance to figure out how to use it.

True, but the poor fella wouldn't be able to hit anything beyond 50 yards...
6.4.2009 2:26pm
one of many:
Lucas,

While DK does not present the whole of Koh's arguments for transnational law DK's summary is a fair representation of the Koh statement that follows. DK did present a fair summary of an argument made by Koh. To adequately cover all of the arguments made by Koh in support of transnationalism (the apparent standard for fairness) would take considerably longer than is practical, indeed one might as well read the corpus of Koh's work if one wants to fairly judge Koh. However if not including the totality of the arguments another makes in critiquing them is unfair, how do you justify the unfairness of not addressing the totality of the arguments Kopel makes in the article, to be fair to Kopel you should present his entire argument instead of one paragraph out of a long piece?

Third, transnational legal process could be used to erode the force of the novel U.S. tactic of unsigning the Rome Treaty. n84 Under international law, it is unclear what the precise legal force of "unsigning" a previously signed treaty should be. At present, the U.S. letter of unsigning is simply lodged with the U.N. depositary of treaties, along with a notation of President Clinton's prior signature. n85 Nor is the matter automatically controlled by the administration's stated desire to reject the ICC. In 1994, for example, the United States attempted to modify its acceptance of the compulsory jurisdiction of the International Court of Justice to avoid a suit by Nicaragua, but the court itself eventually rejected that attempt as legally ineffective and proceeded to judgment against the United States. n86

As a policy matter, it is by no means clear that governments should be allowed to enter and exit their human rights obligations with equal ease. If that were so, other countries could invoke the U.S. "unsigning" precedent to justify backing out of other international commitments of importance to the United States. n87 In each case, the goal should not be to give these nations an easy way out of their commitments, but to enmesh them within the global treaty system to encourage them to internalize those norms over time. Nor can the United States so forthrightly protest North Korea's acknowledged violation of the 1994 Agreed Framework, when the United States itself is unsigning solemn commitments it previously made.

Rather than taking America's unsignature at face value, a transnational legal process approach would recognize that the unsigning actually marks the [*1509] beginning, not the end, of the United States's relationship with an ongoing International Criminal Court. Henceforth, every act of American cooperation with the court will constitute a de facto repudiation of the categorical, but theoretical, act of unsignature. Thus, in a well-chosen case, a state party to the court could request that the United States provide evidence to support an ICC prosecution - as was done, for example, when the United States made classified evidence available to the International Criminal Tribunal for the former Yugoslavia (ICTY) to support the indictment of Slobodan Milosevic. Alternatively, another State could seek to extradite to the ICC a suspect located on U.S. soil. If the United States were to cooperate - as it well might in a case that served U.S. interests - the incident could reduce American exceptionalism, undermine the force of the May 2002 unsigning, and help shift the United States toward a new, more pragmatic long-term policy of cooperating with the court on a case-by-case basis.
6.4.2009 2:49pm
wolfefan (mail):
Geez, rosetta's - pencilneck? You're usually better than that...
6.4.2009 2:52pm
martinned (mail) (www):
@one of many: Seriously, that's what he wrote? Doesn't anyone understand the difference between signing and ratifying? (no one except Lucas, above, that is...)

Unsigning has a very simple result. Under the Vienna Convention on the Law of Treaties, a signatory state may not, between signing and ratifying, do anything that defeats the "object and purpose" of the Treaty. No one knows exactly what that means, but one could imagine that the kinds of anti-ICC agreements that the US have agreed bought during the Bush administration would be forbidden. Unsigning the Treaty made Bush free to do those things.

Unsigning is not, however, the same thing as withdrawing from a Treaty, as the US did with the ABM treaty. Whether such a withdrawal is allowed is more tricky, since it depends on what the Treaty itself says on the matter, if anything. At the very least, it tends to involve a period of notice. (In case of the ABM treaty, the US ceased to be bound one year after they gave notice of withdrawal, IIRC.)
6.4.2009 2:56pm
Anderson (mail):
Implausible or not, the 2A types appear poised to take down this pencilneck

It's not even accurate.
6.4.2009 2:59pm
M N Ralph:

Current federal law only requires licenses for manufacturers who are engaged in the business of manufacturing ammunition for sale. Ordinary competitive shooters, such as myself, are still free to manufacture ammunition at home for their own use without having to pay 1000 dollars for privilege of being licensed by the feds.


Do people really manufacture their own ammunition (excluding perhaps some historical firearms)? I am admittedly ignorant when it comes to guns (but not necessarily anti-second amendment), but that just doesn't make much sense to me. Seems like it would cost a fortune to make your own ammo compared to just buying it.
6.4.2009 3:27pm
Sebastian (mail) (www):
Yes. It's a common practice, and you can fit the equipment to do it in your garage. You buy or reuse finished brass cases, powder, primer, and you can buy equipment to assemble this into completed rounds.

If you're a competitive shooter, it's a must, really, in order to be competitive. Both because your own loads can be made far more accurate than commercial ammunition, and you can produce them yourself more cheaply than buying commercial ammo.

In fact, due to ammunition shortages right now, the only people who have enough ammunition to shoot are the people who make their own loads, or people who stocked up before the shortage.
6.4.2009 3:37pm
rosetta's stones:
Dang, Koh does look like a reasonable sorta chap.... the open hand gesture indicating openmindedness... maybe I should reconsider all this....

Nyaaaah, he's NWO through and through... and he's gotta be history. This is a tribal thing, wolfefan, it don't have to make any sense beyond that.
6.4.2009 3:37pm
mcbain (mail):
touche levisbaby, how do you feel about 9mm vs 45?
6.4.2009 3:40pm
levisbaby:

Do people really manufacture their own ammunition (excluding perhaps some historical firearms)?

Yes. Much cheaper, but re-loading might be a bit more accurate description than manufacturing since most people just buy the components and assemble them. (But some people do melt and form bullets from lead, too.)
6.4.2009 3:45pm
one of many:
martinned:

Indeed that is what Koh wrote, with all the context I felt to in the slightest germane to evaluating DK's summary. Koh is laying out a plan to provide for backdoor implementation of the Rome Treaty.

The problem with going too far in distinguishing "signing' and "ratifying" in the instant case is that the US never ratified the Rome Treaty by US law and also never ratified the Vienna Convention on the Law of Treaties (partly because it's ratification provisions conflict with US law about treaty ratification, how's that for circularity?). While the US has agreed to be bound by many aspects of the Vienna Convention, the ratification and signature area is one where the US has not agreed to be bound. The unsignature is unique because the US is not a signatory to the Vienna Convention, and the status of a treaty which has been signed by the US but not ratified by the senate is unique, it has a different status than that of other nations. The closest parallel would be that the US signature of the Rome Treaty is a signature ad referendum not a full signature, although that's not exact.
6.4.2009 3:50pm
martinned (mail) (www):
@one of many: Probably the status of the Vienna Convention is more complicated still, since the purpose of that Convention was partly to codify existing customary law, while other parts may since have become customary for non-parties, such as the United States. The object &purpose rule is, IIRC, not one of the codification sections, but it is my sense that it may well have become part of customary law since. (I'd imagine that states would cry foul if it were broken even by a non-party to the Vienna Convention.) Even then, that doesn't mean this clause is customary international law as far as the US is concerned. (Something is CIL if there is custom and opinio juris. Because of the explicit unwillingness of the US to sign on to this aspect of the Convention, it would take something pretty explicit the other way to fulfill this second requirement.)

Either way, there is no way that unsigning the Rome Convention can be described as the US "exit[ing] their (...) obligations". There were no obligations. (I wonder whether signing implies some obligation on the part of the executive to endeavour to seek ratification. It doesn't look like the Vienna Convention says anything of this kind, but it does not seem unreasonable to infer sth like that.)
6.4.2009 4:05pm
pintler:

Do people really manufacture their own ammunition


To clarify: a round of modern ammunition consists of:
1)a case, usually brass
2)a bullet
3)a primer (the part that the firing pin hits to
ignite the powder
4)the propellant. AKA powder

The cost savings come from reusing the brass casing - it is usually a non trivial part, if not the majority, of the cost. Some people also cast lead, e.g. used wheel weights, into new bullets. People buy new primers and powder.

You can also, within reason, convert one caliber of brass into another with the right forming dies.

The primary reasons are cost, e.g. I reload 45 ACP bullseye loads for around $7 per hundred, which is a fraction of commercial prices, and I can make very light target loads with bullets optimized for target use. Loadings optimized for target use are not common commercially, perhaps because any competitive shooter is going to be reloading. It's not unusual for a competitive shooter to use a couple of hundred rounds a week, and some a lot more than that.

n.b. I'm describing the most common usage - I have heard of people machining cases from solid brass stock, making their own black powder, etc.
6.4.2009 4:12pm
ChrisIowa (mail):

Yes. Much cheaper, but re-loading might be a bit more accurate description than manufacturing since most people just buy the components and assemble them. (But some people do melt and form bullets from lead, too.)

In the circles that I frequent, most melt their own lead, formulate the alloy, and cast their own bullets. They also test various loads and powders and alloys to determine an ideal load for each of their rifles, which loads might vary according to the humidity when they shoot.
6.4.2009 4:28pm
Anderson (mail):
Don't mess with Chris's circles.
6.4.2009 4:49pm
one of many:

(I wonder whether signing implies some obligation on the part of the executive to endeavour to seek ratification. It doesn't look like the Vienna Convention says anything of this kind, but it does not seem unreasonable to infer sth like that.)
Not am unreasonable inference although US practice is considerably different. The Vienna Convention does not encompass the idea of an executive which does not have the power to bind it's nation to treaties. Some would blame it on that cursed US exceptionalism again, if only we had a ministerial system instead of separate executive and legislative branches of government.

And yes, the status of the Vienna Convention is considerably more complicated. We can start with the argument that the US is in fact a signatory to the Vienna Convention because the executive has signed it, which according to the Vienna Convention is all that is necessary for the signature to be considered binding and just go from there. When talking about International Law (transnational law, supernational law - take your pick) one of the difficulties is that the 3 distinct sources of US exceptionalism 1)from the US status as a dominant nation &2) from the US structure of government ( non-ministerial, non-monarchical) &3) the US constitution as supreme law- the Vienna Convention ratification problems are more attributable to the 2nd than the 1st or 3rd.
6.4.2009 4:52pm
martinned (mail) (www):

3) the US constitution as supreme law

I follow you up to that one. I'm pretty sure that in most countries the constitution is the supreme law. To the extent that states allow treaties to overrule the constitution, they tend to have special ratification procedures for such cases, procedures that are the same or substantively the same as the procedure for a constitutional amendment.
6.4.2009 4:59pm
levisbaby:

touche levisbaby, how do you feel about 9mm vs 45?

I only shoot sig .40s. Just a personal preference.

ChrisIowa - can you get the the same precision from home-made cast bullets that you can from factory manufactured copper coated, like Noslers?
6.4.2009 5:31pm
LA Lawyer:
"Do people really manufacture their own ammunition?"

I would venture to guess that many of federal judges ruling on the meaning of the Second Amendment, and many of the legal academics opining on this topic from an anti-gun perspective, have absolutely zero understanding about the rudiments of firearms or ammunition. They've never owned a firearm, let alone ever fired one or even handled one. This is one facet of the current legal debate that frightens me more than about anything else. (Seriously, can anyone imagine Richard Posner spending the weekend on his workbench reloading ammo? Good gosh.)

By the way, does anyone know where primers can be purchased? Right now, the primer shortage seems even more severe than the national handgun ammo shortage. Ammo availability is a civil right.
6.4.2009 5:43pm
Ron Mexico:

would venture to guess that many of federal judges ruling on the meaning of the Second Amendment, and many of the legal academics opining on this topic from an anti-gun perspective, have absolutely zero understanding about the rudiments of firearms or ammunition. They've never owned a firearm, let alone ever fired one or even handled one. This is one facet of the current legal debate that frightens me more than about anything else. (Seriously, can anyone imagine Richard Posner spending the weekend on his workbench reloading ammo? Good gosh.)


Let's unpack this for a minute. You're complaining that the judges don't know anything about guns and ammo (quite true) and this allows them to make erroneous assumptions and rulings. And what you would prefer is that the judge have a little knowledge about the subject matter because it would aid in the ruling, especially to know the practical effects. This is exactly what Democrats are saying re: "empathy." Have we reached common ground???
6.4.2009 5:48pm
LA Lawyer:
"Let's unpack this for a minute. You're complaining that the judges don't know anything about guns and ammo (quite true) and this allows them to make erroneous assumptions and rulings. And what you would prefer is that the judge have a little knowledge about the subject matter because it would aid in the ruling, especially to know the practical effects. This is exactly what Democrats are saying re: "empathy." Have we reached common ground???"

First off, I do not want to make this some kind of partisan debate. I am not a Republican, and I have not taken a position yet regarding Sotomayor's nomination. I would say that the earlier Second Circuit ruling she was a part of re: the scope of Heller, along with the Seventh Circuit's ruling earlier this week, were both pure sophistry, for the reasons Eugene explained in one of his detailed posts this week.

Second, I don't think having knowledge about the subject matter of a case, or the practical effects of a ruling, is the same thing as having empathy for the litigants. I'd rather a judge be impartial, as opposed to empathetic.

Third, I am not saying judges with zero knowledge of firearms have no business ruling on Second Amendment issues. I am merely saying that some knowledge may assist in the quality of the ruling. For instance, were a judge, before Heller, looking to apply the US v. Miller case faithfully, that judge would have to have some understanding of the KIND of weapons the Second Amendment protects, i.e., "ordinary military equipment," or weapons whose "use could contribute to the common defense." A corollary of that would be what type of ammunition is appropriate for such weapons, and the magazine capacity that would render such weapons effective in either a combat or a defensive use.

Anyway, the image of Richard Posner reloading ammo on his workbench strikes me as amusing.
6.4.2009 6:06pm
RPT (mail):
"Third, I am not saying judges with zero knowledge of firearms have no business ruling on Second Amendment issues. I am merely saying that some knowledge may assist in the quality of the ruling."

If this is correct as a general principle, how could it be remedied, particularly at the post-fact finding appellate level?
6.4.2009 6:12pm
http://volokh.com/?exclude=davidb :

Let's just look for a moment at the CIFTA treaty that Obama proposes the United States enter into. It requires signatory nations to require licensing for the manufacturing of any ammunition.
* * *
How is this not a threat?

Because we'll ignore it. And then we'll get sent to
"treaty jail" I guess.

Didn't we sign a treaty on torture?
6.4.2009 6:14pm
Hans:
Koh is a radical. The treaties Koh backs have been interpreted by committees are restricting free speech, mandating racial and gender quotas, precluding any regulation of even late-term abortions, mandating affirmative action and redistribution of wealth, and abolishing the death penalty and life imprisonment without the possibility of parole.
6.4.2009 6:15pm
Semper Why (mail):
By the way, does anyone know where primers can be purchased? Right now, the primer shortage seems even more severe than the national handgun ammo shortage.

No kidding! The last gun show, you couldn't find pistol primers at any of the 300+ tables for love or money. And I offered both.

I have friends who have large orders for primers through three separate companies and nothing has come in for months.
6.4.2009 6:17pm
one of many:

I follow you up to that one. I'm pretty sure that in most countries the constitution is the supreme law. To the extent that states allow treaties to overrule the constitution, they tend to have special ratification procedures for such cases, procedures that are the same or substantively the same as the procedure for a constitutional amendment.

While not unique to the US, Constitutional supremacy does raise difficulties and cause problems in international law (and none of the others are unique to the US either, Russia for one example is not shy about using it's dominant position among nations to make it's own exceptions). Similar provisions in other countries also justify exceptionalism and if the sole instances of US exceptionalism were those arising from constitutional supremacy then no one would think much of the issue, it would be like the Danish voters' veto power over the European Constitution (yes France killed the constitution but there was no need for France to poll its citizens - Denmark and Ireland were the ones obligated to pander to Danish and Irish exceptionalism), of purely academic interest most of the time.
6.4.2009 6:31pm
LA Lawyer:
"Third, I am not saying judges with zero knowledge of firearms have no business ruling on Second Amendment issues. I am merely saying that some knowledge may assist in the quality of the ruling."

If this is correct as a general principle, how could it be remedied, particularly at the post-fact finding appellate level?

How about arranging a trip to the target range? Maybe if Easterbrook and Posner would get out of their cloistered chambers, and actually experience life instead of theorizing in the abstract about it, they would have a different understanding about firearms. (Posner and Easterbrook, although known for being "conservatives," have always struck me as authoritarian conservatives in the tradition of Carl Schmitt. In this regard, Posner's approval of the infamous Korematsu Japanese-American detention case comes to mind.)

Seriously, the problem probably cannot be remedied. The people that tend to be judges, and the vast majority of the law profession culture (both practitioners and academics), generally have no experience with, or are even frightened by, the gun culture, or anything having to do with firearms. There was a time when it was univerally understood and accepted that a basic responsbility of parenting was to ensure that children were properly trained in the rudimentary use and maintenance of firearms. This was noncontroversial, and not a matter of partisan politics. Those days, sadly, are long past.
6.4.2009 6:36pm
RPT (mail):
"Hans:

Koh is a radical. The treaties Koh backs have been interpreted by committees are restricting free speech, mandating racial and gender quotas, precluding any regulation of even late-term abortions, mandating affirmative action and redistribution of wealth, and abolishing the death penalty and life imprisonment without the possibility of parole."

Does he like Puerto Rican food as well? What "committees"?
6.4.2009 7:21pm
rosetta's stones:

In this regard, Posner's approval of the infamous Korematsu Japanese-American detention case comes to mind.


I don't know who this Posner guy is, but you've already convinced me not to like him, right there.
6.4.2009 7:28pm
LA Lawyer:
"I don't know who this Posner guy is, but you've already convinced me not to like him, right there."

Richard Posner is one of the three "conservative" judges on the US Court of Appeals for the Seventh Circuit who ruled this week that the Heller decision does not bind the States. They thus upheld the Chicago/Oak Park blanket handgun ban.

The Seventh Circuit panel opined that prior Supreme Court precedent compelled the result that the 14th Amendment does not incorporate the Second Amendment so as to bind the states. But they even stated that, even if they not bound by what they considered to be precedent, incorporation would be a bad idea because that would make it impossible for the States to ban self defense. Hence my Korematsu analogy; that is a decision which Posner is on record approving.
6.4.2009 7:49pm
ChrisIowa (mail):
levisbaby

ChrisIowa - can you get the the same precision from home-made cast bullets that you can from factory manufactured copper coated, like Noslers?

The short answer is I don't know.

As far as precision with a home cast versus factory cast bullet, my friends all insist that quality control is better when they cast and load their own. My friends, who also do this are more into the cast bullets, and are using either old single shot rifles such as a Winchester High Wall, Ballards etc. Some are also pre-seating the bullet in the chamber with a tool that places it in a precise position rather than crimping it in the case, and and measuring the powder into the shell immediately before they put it in the rifle to take a shot.

My own shooting is all single shot, offhand with a 22 cal rifle at 50 feet indoors or 200 yards outdoors, it is a local variant of a specialized shooting sport. But those who do this are interested in older guns and cast bullets.

I just got done practicing 50 shots offhand at 100 yards and then re-sighted my rifle at 200 yards for a match. I practice at 100 yards, because you can't see a 22 cal hole at 200 yards unless the light is just right.
6.4.2009 7:54pm
therut (mail):
I think they should teach markmanship and reloading in law school. Or maybe Judges need a prep coarse so they do not come across as so stupid to the peons they rule over. At least they need to learn not to flinch when they shoot or rule.
6.4.2009 8:04pm
LA Lawyer:
Some law schools, I believe, have courses in firearms law and regulation.

Seriously, let's Heller eventually is applied to the States. Nevertheless, the individual right to keep and bear arms would nevertheless be subject to reasonable regulation (in the same manner that the First Amendment does not bar libel or slander, and that speech is still subject to reasonable time, place, and manner restrictions). In this event, judges would need some basic knowledge of firearms to determine if a regulation is reasonable.

Let's assume the Seventh Circuit's decision is overturned, along with the Chicago handgun ban. The politicians would still attmept to impose regulations which many would contend create undue burdens on the right. For instance, Chicago could pass a "one gun" policy, limiting the number of guns one could own. On top of that, they could require that the only handguns permitted would be a .22, with, say a maximum 5 round magazine capacity, They could then restict any online ordering of ammo, and limit ammo purchases to, say 50 rounds per year. And you would also have to fill out a local version of the 4473 for EACH round of ammo you purchase.

Wouldn't some knowledge of firearms be helpful to a judge in determining whether any of these regulations is reasonable under the Second Amendement? Of course, litigants would hire experts to assist. But unless the judge actually has some experience with firearms, how can he or she capably assess an opinion offered by an expert retained by the City, who claims .22 pistol ammo is sufficient for defensive purposes?
6.4.2009 8:32pm
PubliusFL:
LA Lawyer: But unless the judge actually has some experience with firearms, how can he or she capably assess an opinion offered by an expert retained by the City, who claims .22 pistol ammo is sufficient for defensive purposes?

I guess more or less the way judges assess opinions from competing medical experts without going to med school. I would love to see more judges with firearms experience, but I would hope a reasonable judge without firearms experience could rationally way the evidence regarding claims like that. This is reminding me of Orin Kerr's post on the right experience for Supreme Court justices.
6.5.2009 1:01pm
LA Lawyer:
LA Lawyer: But unless the judge actually has some experience with firearms, how can he or she capably assess an opinion offered by an expert retained by the City, who claims .22 pistol ammo is sufficient for defensive purposes?

PubliusFL: I guess more or less the way judges assess opinions from competing medical experts without going to med school. I would love to see more judges with firearms experience, but I would hope a reasonable judge without firearms experience could rationally way the evidence regarding claims like that. This is reminding me of Orin Kerr's post on the right experience for Supreme Court justices.


I do not think that is a good analogy. A judge serving as a factfinder in a medical malpractice case is weighing the credibility of the expert and his or her opinions. But a judge in a Second Amendment case is doing something profoundly different. He or she is not merely making a finding of fact, but a conclusion of law concerning the scope of a constitutional protection, i.e., what is a "reasonable" regulation of the right protected by the Second Amendment.
6.5.2009 8:04pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.